130th Ohio General Assembly
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H. B. No. 274  As Introduced
As Introduced

128th General Assembly
Regular Session
2009-2010
H. B. No. 274


Representative Yates 



A BILL
To amend sections 2923.24, 2925.12, 2925.14, and 3719.172 of the Revised Code to provide an affirmative defense to certain offenses involving a hypodermic or syringe that the person is 18 years of age or older and possesses or otherwise obtains the hypodermic or syringe for the purpose of having a clean needle to avoid HIV exposure and to permit an authorized person to sell or furnish a hypodermic without a prescription to a person who is 18 years of age or older and who wishes to obtain it for that purpose.

BE IT ENACTED BY THE GENERAL ASSEMBLY OF THE STATE OF OHIO:
Section 1. That sections 2923.24, 2925.12, 2925.14, and 3719.172 of the Revised Code be amended to read as follows:
Sec. 2923.24.  (A) No person shall possess or have under the person's control any substance, device, instrument, or article, with purpose to use it criminally.
(B) Each of the following constitutes prima-facie evidence of criminal purpose:
(1) Possession or control of any dangerous ordnance, or the materials or parts for making dangerous ordnance, in the absence of circumstances indicating the dangerous ordnance, materials, or parts are intended for legitimate use;
(2) Possession or control of any substance, device, instrument, or article designed or specially adapted for criminal use;
(3) Possession or control of any substance, device, instrument, or article commonly used for criminal purposes, under circumstances indicating the item is intended for criminal use.
(C) It is an affirmative defense to a charge of a violation of this section that the person charged was eighteen years of age or older at the time of the conduct in question, that the device, instrument, or article the person possessed or had under control that is the basis of the charge was a hypodermic or syringe, and that the person possessed it or had it under control for the purpose of having a clean hypodermic or syringe to avoid exposure to a virus that causes acquired immunodeficiency syndrome.
(D) Whoever violates this section is guilty of possessing criminal tools. Except as otherwise provided in this division, possessing criminal tools is a misdemeanor of the first degree. If the circumstances indicate that the substance, device, instrument, or article involved in the offense was intended for use in the commission of a felony, possessing criminal tools is a felony of the fifth degree.
Sec. 2925.12.  (A) No person shall knowingly make, obtain, possess, or use any instrument, article, or thing the customary and primary purpose of which is for the administration or use of a dangerous drug, other than marihuana, when the instrument involved is a hypodermic or syringe, whether or not of crude or extemporized manufacture or assembly, and the instrument, article, or thing involved has been used by the offender to unlawfully administer or use a dangerous drug, other than marihuana, or to prepare a dangerous drug, other than marihuana, for unlawful administration or use.
(B)(1) This section does not apply to manufacturers, licensed health professionals authorized to prescribe drugs, pharmacists, owners of pharmacies, and other persons whose conduct was in accordance with Chapters 3719., 4715., 4723., 4729., 4730., 4731., and 4741. of the Revised Code.
(2) It is an affirmative defense to a charge of a violation of this section that the person charged was eighteen years of age or older at the time of the conduct in question and that the person made, obtained, possessed, or used the hypodermic or syringe that is the basis of the charge for the purpose of having a clean hypodermic or syringe to avoid exposure to a virus that causes acquired immunodeficiency syndrome.
(C) Whoever violates this section is guilty of possessing drug abuse instruments, a misdemeanor of the second degree. If the offender previously has been convicted of a drug abuse offense, a violation of this section is a misdemeanor of the first degree.
(D) In addition to any other sanction imposed upon an offender for a violation of this section, the court shall suspend for not less than six months or more than five years the offender's driver's or commercial driver's license or permit. If the offender is a professionally licensed person, in addition to any other sanction imposed for a violation of this section, the court immediately shall comply with section 2925.38 of the Revised Code.
Sec. 2925.14.  (A) As used in this section, "drug paraphernalia" means any equipment, product, or material of any kind that is used by the offender, intended by the offender for use, or designed for use, in propagating, cultivating, growing, harvesting, manufacturing, compounding, converting, producing, processing, preparing, testing, analyzing, packaging, repackaging, storing, containing, concealing, injecting, ingesting, inhaling, or otherwise introducing into the human body, a controlled substance in violation of this chapter. "Drug paraphernalia" includes, but is not limited to, any of the following equipment, products, or materials that are used by the offender, intended by the offender for use, or designed by the offender for use, in any of the following manners:
(1) A kit for propagating, cultivating, growing, or harvesting any species of a plant that is a controlled substance or from which a controlled substance can be derived;
(2) A kit for manufacturing, compounding, converting, producing, processing, or preparing a controlled substance;
(3) Any object, instrument, or device for manufacturing, compounding, converting, producing, processing, or preparing methamphetamine;
(4) An isomerization device for increasing the potency of any species of a plant that is a controlled substance;
(5) Testing equipment for identifying, or analyzing the strength, effectiveness, or purity of, a controlled substance;
(6) A scale or balance for weighing or measuring a controlled substance;
(7) A diluent or adulterant, such as quinine hydrochloride, mannitol, mannite, dextrose, or lactose, for cutting a controlled substance;
(8) A separation gin or sifter for removing twigs and seeds from, or otherwise cleaning or refining, marihuana;
(9) A blender, bowl, container, spoon, or mixing device for compounding a controlled substance;
(10) A capsule, balloon, envelope, or container for packaging small quantities of a controlled substance;
(11) A container or device for storing or concealing a controlled substance;
(12) A hypodermic syringe, needle, or instrument for parenterally injecting a controlled substance into the human body;
(13) An object, instrument, or device for ingesting, inhaling, or otherwise introducing into the human body, marihuana, cocaine, hashish, or hashish oil, such as a metal, wooden, acrylic, glass, stone, plastic, or ceramic pipe, with or without a screen, permanent screen, hashish head, or punctured metal bowl; water pipe; carburetion tube or device; smoking or carburetion mask; roach clip or similar object used to hold burning material, such as a marihuana cigarette, that has become too small or too short to be held in the hand; miniature cocaine spoon, or cocaine vial; chamber pipe; carburetor pipe; electric pipe; air driver pipe; chillum; bong; or ice pipe or chiller.
(B) In determining if any equipment, product, or material is drug paraphernalia, a court or law enforcement officer shall consider, in addition to other relevant factors, the following:
(1) Any statement by the owner, or by anyone in control, of the equipment, product, or material, concerning its use;
(2) The proximity in time or space of the equipment, product, or material, or of the act relating to the equipment, product, or material, to a violation of any provision of this chapter;
(3) The proximity of the equipment, product, or material to any controlled substance;
(4) The existence of any residue of a controlled substance on the equipment, product, or material;
(5) Direct or circumstantial evidence of the intent of the owner, or of anyone in control, of the equipment, product, or material, to deliver it to any person whom the owner or person in control of the equipment, product, or material knows intends to use the object to facilitate a violation of any provision of this chapter. A finding that the owner, or anyone in control, of the equipment, product, or material, is not guilty of a violation of any other provision of this chapter does not prevent a finding that the equipment, product, or material was intended or designed by the offender for use as drug paraphernalia.
(6) Any oral or written instruction provided with the equipment, product, or material concerning its use;
(7) Any descriptive material accompanying the equipment, product, or material and explaining or depicting its use;
(8) National or local advertising concerning the use of the equipment, product, or material;
(9) The manner and circumstances in which the equipment, product, or material is displayed for sale;
(10) Direct or circumstantial evidence of the ratio of the sales of the equipment, product, or material to the total sales of the business enterprise;
(11) The existence and scope of legitimate uses of the equipment, product, or material in the community;
(12) Expert testimony concerning the use of the equipment, product, or material.
(C)(1) No person shall knowingly use, or possess with purpose to use, drug paraphernalia.
(2) No person shall knowingly sell, or possess or manufacture with purpose to sell, drug paraphernalia, if the person knows or reasonably should know that the equipment, product, or material will be used as drug paraphernalia.
(3) No person shall place an advertisement in any newspaper, magazine, handbill, or other publication that is published and printed and circulates primarily within this state, if the person knows that the purpose of the advertisement is to promote the illegal sale in this state of the equipment, product, or material that the offender intended or designed for use as drug paraphernalia.
(D)(1) This section does not apply to manufacturers, licensed health professionals authorized to prescribe drugs, pharmacists, owners of pharmacies, and other persons whose conduct is in accordance with Chapters 3719., 4715., 4723., 4729., 4730., 4731., and 4741. of the Revised Code. This section shall not be construed to prohibit the possession or use of a hypodermic as authorized by section 3719.172 of the Revised Code.
(2) It is an affirmative defense to a charge of a violation of division (C)(1) of this section that the person charged was eighteen years of age or older at the time of the conduct in question, that the drug paraphernalia the person used, or possessed with purpose to use, that is the basis of the charge was a hypodermic syringe, needle, or instrument for parenterally injecting a controlled substance into the human body, and that the person used or possessed it for the purpose of having a clean hypodermic syringe, needle, or instrument to avoid exposure to a virus that causes acquired immunodeficiency syndrome.
(3) Division (C)(2) of this section does not apply to a person who sells, or possesses with purpose to sell, drug paraphernalia if the drug paraphernalia that the person sells, or possesses with purpose to sell, is a hypodermic syringe, needle, or instrument for parenterally injecting a controlled substance into the human body, if the person sells it, or possesses it with the purpose to sell it, to another person who informs the person who sells it, or possesses it with purpose to sell it, that the other person wishes to obtain it for the purpose of having a clean hypodermic syringe, needle, or instrument to avoid exposure to a virus that causes acquired immunodeficiency syndrome, and if the other person is eighteen years of age or older at the time of the conduct in question.
(E) Notwithstanding Chapter 2981. of the Revised Code, any drug paraphernalia that was used, possessed, sold, or manufactured in a violation of this section shall be seized, after a conviction for that violation shall be forfeited, and upon forfeiture shall be disposed of pursuant to division (B) of section 2981.12 of the Revised Code.
(F)(1) Whoever violates division (C)(1) of this section is guilty of illegal use or possession of drug paraphernalia, a misdemeanor of the fourth degree.
(2) Except as provided in division (F)(3) of this section, whoever violates division (C)(2) of this section is guilty of dealing in drug paraphernalia, a misdemeanor of the second degree.
(3) Whoever violates division (C)(2) of this section by selling drug paraphernalia to a juvenile is guilty of selling drug paraphernalia to juveniles, a misdemeanor of the first degree.
(4) Whoever violates division (C)(3) of this section is guilty of illegal advertising of drug paraphernalia, a misdemeanor of the second degree.
(G) In addition to any other sanction imposed upon an offender for a violation of this section, the court shall suspend for not less than six months or more than five years the offender's driver's or commercial driver's license or permit. If the offender is a professionally licensed person, in addition to any other sanction imposed for a violation of this section, the court immediately shall comply with section 2925.38 of the Revised Code.
Sec. 3719.172.  (A) Possession of a hypodermic is authorized for the following:
(1) A manufacturer or distributor of, or dealer in, hypodermics or medication packaged in hypodermics, and any authorized agent or employee of that manufacturer, distributor, or dealer, in the regular course of business;
(2) A terminal distributor of dangerous drugs, in the regular course of business;
(3) A person authorized to administer injections, in the regular course of the person's profession or employment;
(4) A person, when the hypodermic was lawfully obtained and is kept and used for the purpose of self-administration of insulin or other drug prescribed for the treatment of disease by a licensed health professional authorized to prescribe drugs;
(5) A person whose use of a hypodermic is for legal research, clinical, educational, or medicinal purposes;
(6) A farmer, for the lawful administration of a drug to an animal;
(7) A person whose use of a hypodermic is for lawful professional, mechanical, trade, or craft purposes.
(B) No manufacturer or distributor of, or dealer in, hypodermics or medication packaged in hypodermics, or their authorized agents or employees, and no terminal distributor of dangerous drugs, shall display any hypodermic for sale. No person authorized to possess a hypodermic pursuant to division (A) of this section shall negligently fail to take reasonable precautions to prevent any hypodermic in the person's possession from theft or acquisition by any unauthorized person.
(C) No person other than one of the following shall sell or furnish a hypodermic to another person:
(1) A manufacturer or distributor of, or dealer in, hypodermics or medication packaged in hypodermics, or their authorized agents or employees;
(2) A terminal distributor of dangerous drugs;
(3) A person under the direct supervision of a pharmacist;
(4) A licensed health professional authorized to prescribe drugs, acting in the regular course of business and as permitted by law;
(5) An individual who holds a current license, certificate, or registration issued under Title 47 of the Revised Code and has been certified to conduct diabetes education by a national certifying body specified in rules adopted by the state board of pharmacy under section 4729.68 of the Revised Code, but only if diabetes education is within the individual's scope of practice under statutes and rules regulating the individual's profession.
(D)(1) No person shall sell or furnish a hypodermic to another whom the person knows or has reasonable cause to believe is not authorized by division (A) of this section to possess a hypodermic.
(2) Division (D)(1) of this section does not apply to a person who sells or furnishes a hypodermic to another whom the person knows or has reasonable cause to believe is not authorized by division (A) of this section to possess a hypodermic if the other person is eighteen years of age or older at the time of the sale or furnishing and if the other person informs the person who sells or furnishes the hypodermic that the other person wishes to obtain it for the purpose of having a clean hypodermic to avoid exposure to a virus that causes acquired immunodeficiency syndrome.
(E) A person who is eighteen years of age or older and who wishes to obtain a hypodermic for the purpose of having a clean hypodermic to avoid exposure to a virus that causes acquired immunodeficiency syndrome may obtain the hypodermic from a person described in division (C) of this section without a prescription, by informing the person described in division (C) of this section that the person wishes to obtain it for that purpose. A person described in division (C) of this section may sell or furnish a hypodermic to another person without a prescription if the other person is eighteen years of age or older at the time of the sale or furnishing and if the other person, in accordance with this division, informs the person described in division (C) of this section that the other person wishes to obtain it for the purpose of having a clean hypodermic to avoid exposure to a virus that causes acquired immunodeficiency syndrome. A person described in division (C) of this section who, in accordance with this division, sells or furnishes a hypodermic without a prescription to another person who is eighteen years of age or older at the time of the sale or furnishing is immune from any criminal liability and from any civil damages for any injury, death, or loss to person or property, that allegedly resulted from or is related to the sale or furnishing of the hypodermic to the other person.
Section 2. That existing sections 2923.24, 2925.12, 2925.14, and 3719.172 of the Revised Code are hereby repealed.
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